Sharmaine Heng Torts – Fall 2003 PURPOSE OF TORTS Tort Law – Tort – twisted, distorted No liability
D‘s negligence P recovers under pure rule if P‘s negligence>= D‘s negligence o Pure v. Modified? P does not recover under pure if he is more negligent than D If P is more negligent, P could end up paying more by having to pay for D‘s injuries and his own Modified is difficult w/ multiple parties. Can consider comparative btwn each D or btwn all D. Limitations o If P is reckless, then not compared to D‘s negligence o If P is negligent, and D reckless is compared in most states (pure version) o If P violates the law then courts usually do not acknowledge claim. o
-
-
-
UCFA – Uniform Comparative Fault Act Pure comparative negligence Setting fault % should consider: (courts resist reassessing fact finder‘s %) o Mere inadvertence or awareness of danger involved o Magnitude of risk created by conduct including potential extent of injury o Significance of what the actor was seeking to obtain o Actor‘s superior and inferior capacities o The particular circumstances (i.e. emergencies) Claim and counterclaims should not be ―set off‖ against one another unless agreed by parties (b/c of insurance – this would preclude either party from being compensated by insurance company) Contribution o Multiple defendants can claim contribution from each other. o If D1 settles and this gets rid of the law suit, then he can seek contribution from D2. o If D1 settles and case against D2 continues. If D2 is found liable on the merits, then D2 cannot go to D1 for contribution, but trial money may be reduced by settlement. Effect of insolvent defendants (3 systems) o In most states, other D split the insolvent D share of damages. o Several liability: Each D just pays the share he owes. Insolvent D is not compensated for. o P and other D split the share of insolvent D in proportion to the % negligent.
Fritts v. McKinne (1996) - P was drunk driving and got into an accident. P died as a result of a procedure that went wrong during surgery. D claims that P‘s artery was in an unexpected place, also claims that P was contributorily negligent, b/c he was drunk driving when he received the injury. - Court held that evidence of P‘s substance abuse was only relevant for damages calculation about future earnings. - P’s contributory negligence unrelated to the medical procedure, doctors are responsible for medical procedures no matter how patient got there. - Compare Benn v. O;Conner IV. AVOIDABLE CONSEQUENCES P‘s damages recovery reduced by failure to exercise due care to mitigate the harm done (even if D is completely negligent) Ex: P‘s failure to get medical attn, P‘s failure to follow medical advice Reluctance to follow medical advice tricky when considered w/ some religious beliefs - If P will not seek mitigating treatment, then similar to eggshell plaintiff Make distinction between avoidable consequences and causation.
29
Sharmaine Heng Torts – Fall 2003 o o Ex: Smoker who works for 35 years, and also works with Asbestos. D cannot claim avoidable consequences, just multicausal. Ex: Person who is told cancer will become lung cancer if he smokes, and he smokes. Yes, avoidable consequences.
Make a distinction between avoidable consequences and contributory negligence. o Ex: P does not wear a seat belt. D hits him. P‘s not wearing a seat belt would probably not be found by court to reduce damages. (avoidable consequences)
V. ASSUMPTION OF RISK W/ comparative negligence, no longer an absolute bar to recovery P assumes the liability. 3 Types o Express (i.e. contract for bungee jumping) o Primary implied (i.e. amusement park ride) o Secondary implied (*) – P knowingly encounters risk created by D‘s negligence Dalury v. SKI: Express assumption of risk Totality of the circumstances and societal expectations govern public policy Invitation to the public to utilize its facilities and services is a question that concerns public interest Premises should, aside from obvious dangers be ―reasonably safe‖ for the purpose of the services rendered. D is least cost avoider o In a better position to prevent the harm o In a better position to insure against the risk It does not matter that skiing is not an essential service Distinguishes ski area risk from the risks of the sport of skiing. Duty to “warn of or correct dangers which in the exercise of reasonable prudence in the circumstances could have been foreseen and corrected.”
-
Role of insurance – should P be allowed to take the risk if he has insurance? - Yes o Compensated for risk and this is what insurance is meant to do - No o We should deter people from dangerous behavior o Adverse selection/moral hazard – Insurance companies will have to raise prices, causing people who can‘t afford insurance to go without it as a result of the people who want to ski. Baseball Spectators - Stadium not liable. - For liability need to show: (alternative) o D failed to erect screen providing adequate protection in the area behind home plate o There were not sufficient seats behind home plate to accommodate the people who want to sit behind the screen - B>PL: There is a cost of enjoyment for screening the entire ball park - Could address through negligence: Ball park has a duty to provide safe seats, no breach b/c they provided the safe seats and the screen is not defective/they were not careless. Murphy v. Steeplechase Amusement Co.: The Flopper (Primary implied assumption of risk) - The willing are not injured – he accepted the risk, risks of the adventure is why you get on amusement park ride. Davenport v. Cotton Hope Plantation: Secondary implied
30
Sharmaine Heng Torts – Fall 2003 P lives in apartment bldg with 3 staircases. The middle staircase is the closest to his apartment. For 2 months, he contacted mgmt about broken floodlights in the staircase, he continued to use the staircase. One night, he fell down the stair case and was injured. Court held: Assumption of risk as a complete bar is incompatible w/ the purpose of apportioning fault in comparative negligence. P‘s conduct in assuming the risk can be considered in the comparative fault system/compared to D‘s negligence Abolishing assumption of risk does not encourage people to take unnecessary risks.
-
Roberts v. Vaughn Firefighters rule: No duty owed to firefighters and safety officers to treat with duty of reasonable care. This duty is replaced by tax supported compensation. Court does not extend this rule to voluntary rescuers b/c against public policy that we want to promote mutual aid. Volunteer rescuers are not compensated.
31
Sharmaine Heng Torts – Fall 2003 STRICT LIABILITY Another tool for P Trend towards negligence? o Rylands – anything that escapes, to anything that is not natural/not customary? o Sullivan – liability for public spaces o Indiana Harbor Belt, where the factors balanced in §520 look like B>PL (i.e. commonness, riskiness, probability of risk, appropriateness, availability of safer alternatives etc.) o 2nd restatement – (see below) Carries on abnormally dangerous activity is subject to liability even though he has exercised the utmost care to prevent the harm. o Corrective justice (individually oriented) to collective justice (society)
Justifications for strict liability: Economic o Deterrence- will give them incentives to not cause harm- to do these activities in safest way possible. Or if they see certain products they make are dangerous, they will pull them off the market. Induce them to behave in a way that will limit the amt of injuries that will result because they know they will have to pay (Calabrisi) o Risk spreading- if you impose SL on manufacturers they will have a way to spread out the cost- by charging a little more – spreads out the cost to everyone Moral o Reciprocity - Strict liability is morally justifiable because it embodies the imposition of nonreciprocal risks (what they are doing is dangerous to us, but we are not dangerous to them) o Causation- its just fair – if one party causes harm to another…between those two parties its more morally justifiable to impose the costs on the party who causes the harm, than on the innocent victim (cause privileged over fault)
-
Fletcher v. Rylands (English Case) - P (Fletcher) land damaged when reservoir built on D‘s (Ryland) land broke and flooded the coal mines below making his property less valuable. D built reservoir filling up old coal mines with soil, not knowing of defect in the soil. D was found non-negligent. - Decided for P. - Person who for his own purposes brings on his lands and collects and keeps there “anything likely to do mischief if it escapes,” must keep it in at his own peril, and if he does not do so is prima facie answerable for the natural consequences of its escape. - In negligence cases, parties take risks by going out in public, but one‘s own property has aura of safety - Focus is on protecting ability to use private property. - Appellate court: o Still holds for P, but distinguishes btwn natural and artificial use. You don‘t have to bring sth on your land, just use it in a non-natural way. If natural use of D‘s land no strict liability. If artificial strict liability applies. When D does something not natural he introduces the risk and does so at his own peril. American courts not enthusiastic about adopting brad principle of strict liability (Rylands). Perhaps has to do w/ social framework. Natural is similar to customary. - English are landed gentry. Americans have a different view of land, i.e. Texas is not England. Turner v. Big Lake Oil – in arid land, reservoirs are considered natural and necessary for common use of land. Losee v, Buchanan (American Case) - D‘s steam boiler explodes and is catapulted into P‘s land. - Court held for D. - D is not liable b/c in becoming a member of civilized society you give up natural rights.
32
Sharmaine Heng Torts – Fall 2003 Court seems to make the argument that factories, machinery etc. are ―natural‖ at the base of our civilization.
Sullivan v. Dunham - D blasts a tree on his land w/ dynamite. Fragment of wood is hurled onto the public highway, where it strikes and kills P. D was not negligent. - Decided for P. - D is strictly liable. - Public policy – you should feel safe on public land. - Distinguishes from Losee b/c there D did not do anything to allow the steam boiler to catapult. D in this case should not be allowed to use his land in a way that causes injury w/o being liable for damages. Previously 2 standards: (1) where when you do sth wrong you are liable, (2) always liable. Strict liability is beong defined @ a different level. Sullivan – court looks at what was done w/ dynamite and says handling dynamite is so serious that you are strictly liable. Restatement 2nd § 520: If abnormally dangerous Strict liability - One ―who carries on an abnormally dangerous activity is subject to liability for harm…resulting from the activity, although he has exercised the utmost care to prevent the harm.‖ Lists six factors for consideration in determining whether an activity is ‗abnormally dangerous‘: o Riskiness: Existence of a high degree of risk of some harm to the person, land or chattels of others; o Probability of harm: Likelihood that the harm that results from it will be great; o Cannot eliminate risk: Inability to eliminate the risk by the exercise of reasonable care; o Commonness: Extent to which the activity is not a matter of common usage; o Inappropriateness: Inappropriateness of the activity to the place where it is carried on; and o Utility: Extent to which its value to the community is outweighed by its dangerous activities. Indiana Harbor Belt RR c. American Cyanamid Co. (Posner,1990) - D manufactures a dangerous chemical, and during transport there is a spill destroying stuff and causing evacuation and clean up costs (1 mil). Lower court found D strictly liable. - Decided for D. - No strict liability. Strict liability should not be imposed against manufacturer, for accident during transportation. o §520 encourages use of alternative methods when possible. There are no better alternatives here. (i.e. truck no better than train) o Negligence regime is adequate for deterring RR spills o D were not the shippers, they were not the actors in this action. DEFENSES TO STRICT LIABILITY: - Rstmt § 523: ―л‘s assumption of risk of harm from the activity ‗bars his recovery for the harm.‘‖ - Rstmt § 524: contributory negligence is not a defense to strict liability except when the л‘s conduct involves ―knowingly and unreasonably subjecting himself to the risk of harm from the activity‖ - The Rstmt was written before the popularity of comparative negligence though…should comparative negligence be extended to strict liability?? This is discussed later (p.605) in context of product liability.
33
Sharmaine Heng Torts – Fall 2003 PRODUCT LIABILITY – example showing tension between strict liability and negligence I. PRODUCT LIABILITY--INTRODUCTION, 540-556 A. Keep in mind how relates to increasing industrialization, where (1) manufacturer and consumer are farther apart, (2) products are increasingly complicated. B. Early cases relied on contract law and required ―privity‖ between the parties in order for the D to be liable. Erosion of privity requirement (privity=duty): C. No privity, if the product (1) imminently dangerous and (2) danger is foreseeable.
Thomas v. Winchester (1852) - Manufacturer falsely labeled poison and sold it to a druggist. The druggist unknowingly sold the poison to a customer. Customer was injured. Customer sued manufacturer. - Holding: Privity is not important here. The manufacturer has a duty, because the poison is (1) ―imminently dangerous,‖ and (2) danger was foreseeable w/ this type of product. (i.e. guns, dynamite) D. Privity is NOT required at all MacPherson v. Buick Motor Co (1916) : Expansion of tort law application Facts: P driving a Buick car. The wheel (not made be Buick) of the car broke, and P was injured. P sued Buick saying they should have checked. No privity btwn consumer (P) and manufacturer (D). (Cardozo opinion w/ sparse facts) Holding: Applies/expands Thomas, and effectively says that privity is not required. These cases will now be tried under tort law. o “If the nature of the thing is such that it is reasonably certain to place life/limb in peril when negligently made then it is a thing of danger” – does not require privity.
-
Feldman suggests that P was negligent. From now on, defense is not privity defense, but based on not breaching a duty (negligence). Tort prevails over contract law. E. Warranty Development – way of imposing strict liability through contract law. Privity not completely obliterated. Ryan v. Progressive Groceries - P‘s wife buys bread and P is injured when he swallows a pin embedded in the bread. - Court holds that grocery store is liable. F. Negligence is NOT necessary in product liability
Escola v. Coca-Cola : Stream of commerce case (Manu responsible for all consequences) - Compare Rylands - Facts: Escola injured handling a faulty coke bottle. The bottle shatters and cuts her. Escola sues Coca Cola bottler under res ipsa. - Holding: Based on res ipsa, court finds that negligence is inferred b/c the bottler had exclusive control over the product. - Traynor’s concurrence: Suggests that negligence should not matter, and that product liability should be governed by strict liability. a. Manufacturer in the best position to prevent the injury. b. Manufacturer can spread risk through increasing prices to all consumers. c. Strict liability serves a better deterrent function. d. Greenman v. Yuba – Traynor‘s concurrence is now majority opinion. Strict liability is better than warranty in product cases. Warranty system is irregular. Manufacturer should bear the cost when put products on the market and know that people will use them w/o
34
Sharmaine Heng Torts – Fall 2003 inspection. (P‘s wife bought a tool, P was hurt when using the toll a piece of wood struck him in the forehead.) Difference btwn absolute liability scheme and negligence is allocation of the burden. G. Restatement 2nd of Torts §402A (1965) 1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if a. The seller is engaged in the business of selling such a product, and b. It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold 2. The rule stated in subsection (1) applies although a. The seller has exercised all possible care in the preparation and sale of his product, and b. The user or consumer has not bought the product from or entered into any contractual relation with the seller P needs to demonstrate that the product causing the injury was defective and unreasonably dangerous when it left the defendant‘s possession. H. Restatement Third: Products Liability (1998) o Section 1: ―One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.‖ o Section 2: For purposes of determining whether a product is defective, there are 3 types of defects. A product a. Contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product (aberrant product) b. Is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by (1) the adoption of a reasonable alternative design (RAD) by the seller or other distributor, or a predecessor in the commercial chain of distribution, and (2) the omission of the alternative design renders the product not reasonably safe (whole line is defective) c. Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings render the product not reasonably safe. There are no bright lines between 3 categories , sometimes may be hard to figure out which one it falls in, sometimes the issue may fall in all three
Why is it that in US, tort liability has come to enshrine notion of fault? Relationship btwn rules and social context? - Strict liability‘s effect on the market - Role of insurance companies - Not showing fault, gives incentive for people to overclaim, be less careful - Industrialization, amss production require us to consider absolute liability? II. PRODUCT LIABILITY--MANUFACTURING/DESIGN DEFECTS, 556-81 A. Manufacturing – aberrant product (closest to strict liability) i. Strict liability applies regardless of whether the defendant introduced the defect. i.e. Welge v. Planters Lifesavers – P successfully sued jar manufacturer, K-Mart and peanut company for injuries from the jar shattering.
35
Sharmaine Heng Torts – Fall 2003 ii. However, defendants are not liable for defects where other factors outside of defendant negligence can be ruled out. i.e. Price v. GM – where P sued for car swerving into utility pole, but the car was inadvertently destroyed before investigation. Because P bought the car second hand and had owned the car for a number of years before accident, maintenance of car could have been a factor. Court holds for the defendant. iii. Absence of evidence is not always dispositive, if account of the injury allows inference of the defect. iv. Often latent defect, not open and obvious. (Not detectable on the part of the consumer therefore liable) B. Design defect – whole line defect i. Look at reasonable alternative design and (some states) unreasonable dangerousness of the product. ii. Treated similarly to manufacturing defect. In many states defect does not have to be ―unreasonably dangerous.‖ i.e. Cronin – bakery truck driver is hit in the back with trays when the truck crashes. Court holds that defendants are liable because the plaintiff was injured and it looked like there was some element of negligence. Barker: High lift loader started to shake and scared he jumped out and the timber on the loader fell on him. 1. 2 part test to show design defect: a. Consumer expectations test: When consumers have expectations use this test. Product failed to perform as safely as ordinary consumer would expect when uses it in an intended or reasonably foreseeable manner. (Favors consumer, because our opinion is the base line) i. Favors consumer ii. Less costly to bring law suit. iii. BUT there are adverse effects. i.e. Airbags. Consumers think that airbags should be safe, but then there is a case where the airbag injures sb and manu are liable. This causes prices of cars to increase and limit on options. b. Risk Utility test: If jury finds the risk of danger inherent in the challenged design outweighs the benefits of such a design (look at gravity of danger, likelihood of risk, alternative design potential, cost of an alternative, other adverse costs of alternative). i. D has burden to show jury that the design is not defective in this 2nd prong (This is exception, most states do not shift the burden). ii. Focus is on the condition of the product itself, not the reasonableness of the manufacturer’s conduct (i.e. not going to the plant to see the people check the items) iii. Manufacturer is responsible for foreseeable uses even if they were not intended.
Soule v. GM: Applies Barker - Facts: P in a car accident where the left front section of her car was smashed causing the floorboard to collapse inward and fracture her ankles. P claims design defect. Court decided for P. D appeals. - Consumer expectation test alone was not appropriate b/c ordinary consumers do not know how an automobile design should react under these complex circumstances. - Consumer expectation is not appropriate, but it doesn‘t affect the outcome of the case. - Holding: Decided for P. Use consumer expectations when – everyday experience of the product‘s users permits a conclusion that the product‘s design violated minimum safety assumptions.
36
Sharmaine Heng Torts – Fall 2003 Camacho – 7 factor risk utility Ortho Test (similar to negligence but focus on the product) Crashworthiness doctrine – manufacturer can be held liable for injuries where although manu and design defects were not the cause of the accident, they enhanced the injury. - Manu has duty to design a product that minimizes injury in a collision (b/c collision is foreseeable), by including commonplace safety features.
-
-
-
P bought new motorcycle w/o leg guards. P sues b/c suffered severe leg injuries. D claims that absence of leg guards are open and obvious dangers and w/in the contemplation of the consumer. Issue: Should we allow consumers to sue manufacturer for a willing choice to use product w/ an open and obvious danger? D claimed that motorcycles cannot be made perfectly crashworthy and therefore they should be exmpt from liability. Court held that goal is to max dvpt of cost efficient safety features therefore not exempt. Open and obvious is not a defense to claim that product is unreasonably dangerous. Reversed/remanded. Consumer’s expectations is not relevant. The proper test for whether a product is defective is whether the product is unreasonably dangerous when used in an intended manner. Whether this is so is very fact/ case intensive (and therefore should have been sent to jury…not sum judgment) - requires looking at 7 factors (Ortho). D has greater access to information necessary to make decision about efficacy of potential safety measures. Should encourage use of this information to help avoid accidents. (1) Utility: The usefulness and desirability of the product- its utility to the user and to the public as a whole (2) Probability of harm: The safety aspects of the product- the likelihood that it will cause injury and the probable seriousness of the injury (3) Safer RAD: The availability of a substitute product which could meet the same need and not be as unsafe (4) Safer RAD considering cost: The manufacturer‘s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility Consumer expectations: (5) The user‘s ability to avoid danger by the exercise of care in the use of the product (6) The user‘s anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions (7) Risk spreading/insurance: The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance Dissent: When a common consumer product is involved, the consumer expectation test is appropriate.
NO REASONABLE ALTERNATIVE DESIGN o Л ―must prove that a reasonably alternative design would have reduced the foreseeable risk of harm.‖ o Part of risk utility test o ―a broad range of factors may be considered in determining whether an alternative design is reasonable and whether its omission renders a product not reasonably safe.‖ o These factors include ―among others‖ o The ―magnitude and probability of the foreseeable risks of harm o The instructions and warnings accompanying the product o And the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing‖ o Relative advantages and disadvantages of the product and its proposed alternative must be considered These include: The impact on production costs Product longevity Maintenance Repair Aesthetics
37
Sharmaine Heng Torts – Fall 2003 And the range of consumer choice among products
Volkswagon Microbus : Where consumer expectations test might have adverse effects P claims that microbus is defectively designed b/c passenger section is at the very front of the vehicle and therefore more hazardous than usual American design. Decided for D. Court held that should take price/market into account. Court imposed design change may lead to increase in manu costs, w/o giving consideration to market purposes, utility of the vehicle. Microbus designed to create economical vehicle that max cargo and passenger space. The passenger section at the very front was obvious to consumers. Many factors involved in whether manu has used ordinary care, including o Market purposes – target buyer o Utility – SUV, storage o Whether imposed unreasonable risk given ―intended use.‖
O’Brien: Above ground swimming pool No RAD Luxury product v. necessary product Although no RAD, jury should still be able to decide whether risks of the product are greater than utility.
Baughn: Mini trail bikes No liability when there is no ―practical and technically feasible alternative design that would have prevented the harm w/o substantially impairing the reasonably anticipated or intended f(x) of the product‖ Only imposed liability if : o Egregiously unsafe/ultrahazardous o Ordinary consumer cannot reasonably expected to understand the risks o The product has little or no usefulness. PRODUCT LIABILITY--SAFETY INSTRUCTIONS/WARNINGS, 581-605
III.
FORESEEABILITY Balancing of risks in this category—not consumer expectations (whereas in design defects it can be either) Two roles can be played by instructions/ warnings alert consumers to the dangers of using the product in ways unintended by manufacturer/ instruct on how to use it in ways to reduce chances of potential injury alert potential buyers to dangers in the product that cannot be avoided by consumers no matter how careful they may be (ex. warnings on prescriptions) Threshold Issue: Common Knowledge and the duty to warn- the first issue in these cases is whether any words at all are needed to address the risk in question. There is NO duty to warn when the danger is obvious (ie. no notice required on alcohol to warn against the dangers of drinking too much in short period of time) Adequacy of warning- another issue is if warnings on a product were adequate (this can be an issue whether л did or did not read them) The intensity of the words of the warning The prominence of the display of the warning Compliance w/ regulation Foreseeability that warning Interplay of design and warning: o In consumer expectations test: adequate warnings may get you get out of design defect issues, because the consumer could not expect safety, because you warned them of the danger
38
Sharmaine Heng Torts – Fall 2003 in risk/utility test: some courts could say that Δ gets out of design defects issue, because they could not have predicted that the л would have ignored its adequate warnings…but most would say that warnings should not absolve a manufacturer of the duty to design reasonable safeguards Misuse: injuries often result form ―unintended‖ use of the product. As Hood, Camacho, and Soule make clear, this not a complete defense if the ―misuse‖ or ―unintended use‖ was one that was reasonably foreseeable. Product suppliers must anticipate uses that are “unintended but foreseeable.” o
Hood v. Ryobi (Miter Saw) - Δ‘s saw had a bunch of warnings not to take off saw guard, but л took it off anyway…л gets injured, claims that the warning were not adequate because they did not warn of the precise danger that could result (just said danger—don‘t take it off, л says they should have said the saw part would fly off) - Holding: summary judgment for Δ. While a manufacturer may be liable for placing a product on the market that bears inadequate warnings, here they had adequate warnings. A warning need only be reasonable under the circumstances. The warnings on the saw were clear and very visible, (there were some on box, and some on saw itself) and were adequate as a matter of law. The question of adequacy is generally one of fact, but here it is so clear that it is a matter of law. Could argue that b/c it is foreseeable that the saw could not cut through wood completely, that the manufacturer should have foreseen that user would take off the guards (this had happened once before). Marshmallow case – court held that jury should decide whether marshmallows need a warning about not feding them to children. Learned intermediary – Shields pharmaceutical companies from liability. Companies are only required to warn doctors about drugs who then prescribes to the patient. Exception to manufacturer‘s duty to consumers – do not have to tell consumers directly. - Two Exceptions: FDA mandates explicit safety warning (i.e. contraceptives, nicotine patch..) Mass immunization – b/c less contact with doctors. Now child vaccination is no fault. - Current arguments that this rule should not exist because of the current relationships people have with doctors (fragmented HMO and not family doctor) and effectiveness of commercials directly to consumers. BUT, worry about endorsing consumers not talking to doctors. Compare doctor cases. Edwards v. Basel Pharmaceuticals: EXCEPTION learned intermediary rule - FDA compliance for warning is minimum - Warning stated, ―overdose may cause you to faint.‖ - л's husband died from nicotine overdose bc he wore two of Δ's nicotine patches. Thorough warning was given to physicians prescribing the patch, but the insert intended for user not thorough. - This case falls within an exception of the learned intermediary doctrine, and therefore Δ is liable for inadequately warning the л‘s husband directly. (FDA mandates that a warning be given directly to the consumer in nicotine patches – so falls in 2nd exception) The required warnings then must be adequate to explain the possible dangers of the product regardless of whether they meet the statutory requirements of the warning—Δ complied with the FDA requirement, but if the warning was not sufficient, Δ loses—they send case back to trial ct to figure out if the warning was sufficient or not - D is liable for not warning patient directly in explicit enough terms. Vasallo v. Baxter Healthcare (Feldman Case ex ante approach ~Negligence) - Manufacturer is held liable under implied warranty of merchantability for: o Failure of duty to warn of risks reasonably foreseeable @ the time of sale or that could have been discovered by way of reasonable testing prior to marketing. o Failure of continued duty to warn of risks discovered following the sale of product o Manufacturer held to standard of expert in the field Beshada (ex post) & Feldman (ex ante)
39
Sharmaine Heng Torts – Fall 2003 Beshada (Ex post) – manu should be held liable by strict liability for injuries from asbestos in hindsight - In keeping w/ goals of strict liability – focuses on the product, not the fault of the manufacturer o Risk spreading o Accident avoidance o Reducing admin costs - Imposing costs of failure to discover hazards , creates incentive for them to do safety research - Manufacturers should not be able to escape liability b/c they did not know at the time Feldman (Ex ante) – P‘s teeth discolored after using product for a long time - ~negligence - Restricts Bashada to asbestos. - Manu conduct should be measured by the knowledge @ the time of marketing. Court should ask o When manu had actual/constructive notice of the danger o Treat manu as expert in the field o Expect that manu should keep informed/seek out information concerning the public‘s use of his product. o Shifts the burden to D to give evidence on expert field. IV. PRODUCT LIABILITY--DEFENSES, 605-614
GM v. Sanchez - Issue: Does comparative responsibility apply to product liability?
V.
PRODUCT LIABILITY--WORK-RELATED INJURIES, 614-629
Jones v. Ryobi (work related design defect) - P (employee) operates machine for business cards tomorrow (BCT). Employer removed plastic guard provided by the manufacturer to increase production. The modification was common practice in the industry. P injured hand when she caught it in the machine. P learned to operate the machine on the job. Distributor knew of the modification. P sues manufacturer. - When a 3rd party modification makes a safe product unsafe, the seller is relieved of liability even if the modification is foreseeable. - D claims that the danger was open and obvious. - P needs to show that machine was faulty at the time it was sold. - P claims that machine was dangerous with the guard. - Since the machine could work without the modification, and the modification was done by employers then should not be held liable. - Customer expectations test. - (sh) putting liability on the manufacturer might result in greater research into new machines.
40
Sharmaine Heng Torts – Fall 2003 (sh) could argue that b/c they knew the printing industry was uniformly making these modifications that the use was foreseeable. Court influenced by worker‘s comp. Dissent: the modification may not have been for productivity, but for humidity etc. may indicate something is wrong with the machine. Shouldn‘t manu be liable for this.
Liriano v. Hobart (work related failure to warn) - P injured while operating meat grinder in grocery store where the safety guard had been removed. P claims that manu should have warned. - Yes, not liable for design defect - follows Jones‘ logic - Failure to warn is different – focus on foreseeability, less of a burden. - Manu has duty even after the product released. - Where a danger is obvious no need to warn - Safety guard may serve as constructive warning. - (Calabrisi) Danger was open and obvious but warning gives employee way to ask employer of safety. - New lines - Foreseeable defects/foreseeable warnings - This case gets rid of the line btwn foreseeable and unforeseeable modifications Lopez – Forklift operator hit on the head, when safety feature is designed to be removable. Court says that up to the fact finder to see if the product is not reasonably safe. Different from case where plastic guard is removed or cut. VI. Product Liability--Beyond Products: 632-639
Royer v. Catholic Medical Center P sues hospital for defective knee replacement device. D claims that it is not a product, but a service. Court held that sale of product was ancillary to the service.
Hovan – suggests enterprise liability. Should be able to sue hospital b/c serves deterrence function and also passes the loss to the channels of distribution.
41
Sharmaine Heng Torts – Fall 2003 DAMAGES I. General 1. Early individualized justice goal: Early tort law did not allow suits after death of plaintiff. At first, survival statutes that allow family members to sue on decedents behalf, in addition to wrongful death which accounts for the family members‘ loss. 2. Reliance damages – compensate people so that they are in the position they would have been in had the accident not happened. 3. Single-judgment approach – one time recovery for past and future damages. i. Otherwise would create bad incentives for P to never recover (i.e. if P instead were to submit bills to the court for reimbursement) ii. Administratively efficient iii. Do not want to hold D indefinitely iv. Compensation=present value of total award. II. Two Approaches: Individual Justice and Actuarial (similar to tension btwn tort and no-fault) 1. Individual Justice Facts: Bus door closed on P‘s foot and hand as she attempted to board the bus. P was dragged for a distance and sustained permanent life-altering injury. 2. Holding: Damages are not excessive. Appellate court should only reduce jury award if it ―shocks the conscience…and appears that passion and prejudice are involved.‖ 3. Rationale: Court examines the particulars of her individual life (i.e. her change in lifestyle, how she feels – similar to facts in Wry v. Dial). Determines that although non-pecuniary damages look high, they do not supercede the presumption for trusting the trial court that has seen the damages first hand, does not ―shock the conscience.‖ 4. Dissent: Traynor disagrees and thinks the court should have taken a more actuarial perspective because similar cases with similar injuries have paid out less in damages. Actuarial Perspective – focus on 1. Facts: P is comatose as a result of D‘s malpractice. Appeal concerns whether P can recover for pain and suffering and loss of enjoyment, if he is no longer capable of awareness/feeling. Holding: Case remanded because need to consider ability to sense when considering pain and suffering and loss of enjoyment damages. Rationale: Court looks at theory of punitive damages as punishment for D as opposed to level of P‘s pain and suffering (Seffert). Concludes that since the purpose is to compensate only to restore the P to pre-injury levels, if this is not possible, then no point. Dissent: Despite inability to sense, should compensate for loss of enjoyment, but not for pain and suffering. It is clear that the P is not enjoying life. We can examine the actual life to see this, it does not require that we look at his subjective.
Seffert v. Los Angeles Transit
2.
McDougald v. Garber 1.
2. 3.
4.
III.
Two Types 1. Pecuniary (Compensatory) – compensate people so that they are in the position they would have been in had the accident not happened. Includes medical expenses (past and future), lost wages. Compensatory function. 2. Non-pecuniary (Punitive) – compensate for non-economic harms. Includes pain and suffering, loss of enjoyment. i. Why?
42
Sharmaine Heng Torts – Fall 2003 1. 2. Has deterrent function of punishing and making example of defendant. Also may fill the gap of criminal system (Taylor). a. There are gaps in the criminal system, (i.e. plea bargains and lower fines) b. Civil fines may be more humane than criminal punishment in some cases. (i.e. first time offenders) c. However, do not want to compensate twice for the same injury. as
3.
ii. However there are some problems: 1. Excessive. Juries tend to award a lot of damages. Punitive damages are spiraling out of control. Especially a problem where punitive damages are not under insurance acc to state law, because then punitive damages can be unjust punishment or not effective. 2. Unjust enrichment 3. Double punishment: punishment is taken care of by the criminal system. 4. Makes defendant‘s financial standing part of the presentation in the case. This is relevant here, but not for other parts of the case. 5. Comparative negligence wants to protect injured wrongdoers, when their injury is in part caused by the actions of the P. Punitive damages goes against the goal of protecting these parties. 6. Punitive damages only have marginal deterrent effect when the conduct is a crime or where the conduct will likely result in injury to the wrongdoer. Taylor v. Superior Court Issue: Whether intent is required for punitive damages. Facts: Stile was driving drunk and got in an accident with Taylor. Stile had history of alcoholism and multiple arrests and convictions for driving under the influence. Taylor sued for punitive and compensatory damages. Trial court dismissed the punitive damages because the action wasn‘t intentional. Taylor appealed. 9. Holding: Gross conscious disregard for safety of others is sufficient to award punitive damages. 10. Dissent: Punitive damages problems above. State Farm v. Campbell (2003) 11. Facts: Campbell was insured by State Farm. State Farm refused settlement for policy cap (50k) and instead decided to contest liability of insured in court despite advice otherwise, assuring the insured that his assets were safe. Court decided that insured was at fault and damages for 185k. State Farm initially refused to pay excess of cap. State Farm paid eventually, but Campbell sued them for bad faith dealing. Trial court awarded 145 mil in punitive damages. 12. Holding: Punitive damages are excessive and suggests that punitive damages at or near compensatory damages would be more appropriate (Close to 1 to 1 ratio). 13. Rationale: a. BMW 3 Guidepost Test i. Degree of reprehensible conduct 1. physical v. economic harm 2. intentional v. accident 3. repeated v. sole incident 4. recklessness ii. Ratio of compensatory and punitive iii. Damages of comparable cases 14. Dissent (3): This is NOT a constitutional question. Federalism and separation of powers worries. Concern that reducing the punitive damages award, is against 7. 8.
43
Sharmaine Heng Torts – Fall 2003 the state supreme court‘s right to set their own standard. Also, reducing or suggesting a cap level is something for legislative not judicial branch. iii. Current solutions for punitive damages concerns 1. A few states have abolished punitive damages 2. A few states have kept punitive damages, and have required the P to share the money with the state. 3. 12 states, cap punitive damages. Absolute cap or cap on ratio to compensatory damages. 4. A few have raised the burden of proof for punitive damages.
44
Sharmaine Heng Torts – Fall 2003 ALTERNATIVES TO TORTS ARTICLE: September 11 Victim Compensation Fund (Rabin) Issue: Whether the Fund approach offers a sensible alternative to tort for victims of terrorism or other acts of violence? Conclusions: Fairness considerations suggest that affording special status to victims of terrorism as no-fault claimants/mass calamities is problematic What else: Article focuses on the compensation goal of torts, remember the others deterrence, low admin costs, fairness Tort on 9/11 1. Torts Arguments a. Airlines/Airline manufacturer i. Proximate Cause Airlines would say that terrorists caused the accident not the airlines. Of course, this is not a complete defense. Similar to keys in ignition. ii. Foreseeability P would say that airlines should have seen the possibility of hijacking. This is a good argument for plane victims, but not for the building victims. b. Building designer i. Foreseeability Perhaps past attacks evidence that building designer should have known that building may be attacked and should have planned accordingly. ii. Product liability - Design defect Was there a reasonable alternative design that would have withstood the airplane impact. Limitations a. Insolvency Using purely torts framework, victims would sue the airline companies, airlines would go bankrupt and victims would be poorly compensated. Insolvency is a central fairness and efficiency consideration more than doctrinal liability issues. b. Protracted litigation Torts cases are costly and take a long time. No-fault system is better able to quickly compensate victims. c. Floodgates of litigation Many victims means catastrophic financial consequences. Might think that statutory schemes are better to protect solvency of big industry (i.e. CASE: Strauss v. Belle Realty - utility companies) Draw the line between victims in the plane and victims in the building. Torts inherently looks at the individual situation of each claim, it is perhaps ill fit to the mass community catastrophe. In the highly publicized mass catastrophe of 9/11, separating out the victims would seem arbitrary and harsh. In these situations, there is usually a larger call for no-fault compensation plan. d. Particular to 9/11 Symbolism and scale is larger than even small random localized terrorist attacks. In localized attacks: o Prior similar incidents test
2.
45
Sharmaine Heng Torts – Fall 2003 o o e. Totality of circumstances test Balancing test – does not offer random victims relief.
Policing In 9/11 policing may have been a target for litigation, but because public forces they are subject to immunity.
No-Fault 9/11 Scheme 1. General Plain reading is consistent with other no-fault schemes in that it is motivated by concern to overarching concern to compensate victims, BUT differs in that it is latent with individualized compensation ideas of tort law. (i.e. includes compensation for non-economic harm that would have to be individually assessed, similarly covers lost future wages) Implementation is oriented away from case-by-case assessment, but still retains tort concepts. Non-economic harm and future economic harm are compensated for based on a schedule of characteristics. Offsets for all collateral sources, which is harsher than most no-fault schemes. In general generous, but hard to understand outside of the specifics of 9/11. 2. Alternatives Israel – medical expenses and economic loss (but not non-economic loss) Northern Ireland – need based aid, supporting all unfortunate, innocent victims including terrorist victims. Horizontal equity. State criminal – similar to Ireland, with cap on maximum amount of aid. Seeks to meet the immediate basic needs of victims of crime. 3. Conclusion 9/11 scheme is okay, but it is hard to see how it will apply as precedent for future issues. It is unclear why terrorist victims should be treated differently from other innocent victims. There is a danger in separating out this special class of victims. NEW ZEALAND COMPREHENSIVE NO-FAULT SYSTEM 1. Background a. New Zealand small – 3 million b. Common law perceived as a ―lottery.‖ Why should workers be treated differently. Unified scheme – for ―personal injury by an accident‖ a. 5 propositions i. All citizens protected against income loss and permanent disability ii. Compensation related to nature of the injury, not the cause iii. Stress physical/vocational recovery along w/ compensation iv. Benefits paid for duration of incapacity v. Plan must be expeditious Emphasis on accident prevention and rehabilitation, and compensation. New 1992 scheme shies away from the more social insurance-like scheme in 1974: 1974 Scheme o ―personal injury by accident‖ – result focused o Earners scheme – companies pay for worker‘s n and off the job o Motor vehicles accidents paid by taxes on drivers o Non workers paid out of general treasury o Lump sum payments – (1) loss of limbs, (2) up to 10,000 for pain and suffering, loss of enjoyment, disfigurement. 1992 New Scheme – limits 1974 program o ―Personal injury by an accident‖ – injury must be related to some separate cause (before injury was compensable if the result of an act was accidental.) o No mental distress compensation independent of physical injury o Need proof of sth like negligence for medical misadventure claim
2.
3. 4. 5.
6.
46
Sharmaine Heng Torts – Fall 2003 o o o No coverage off work – personal insurance instead ―User pays – gasoline tax added to compensate motor vehicle accident victims Health providers give premium to cover medical misadventure compensation
Notes: 7. Franklin – Torts is a ―lottery‖ system o Different plaintiffs get different damages required for the same injury. Defendants get diff liabilities for same wrongful act. o 2 systems (1) Compensation scheme – social insurance fund (2) Deterrence scheme – uninsurable fines and enterprise reimbursements of the fund for injurycreating activity. 8. Kalven – The problem w/ tort system is uninsured people/people in poverty.
47